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2016 DIGILAW 1073 (GAU)

Raj Kumar Barman v. State of Assam

2016-11-30

ACHINTYA MALLA BUJOR BARUA

body2016
JUDGMENT AND ORDER : A.M. Bujor Barua, J. Heard Mr. S.P. Deka, learned counsel for the petitioners and Mr. J. Abedin, learned Standing Counsel, appearing for the Education Department, Assam. 2. All these five writ petitions involve the same questions of fact as well as law and as such, all the writ petitions are taken up together. WP(C) No.6470/2013 is preferred by 289 numbers of petitioners, WP(C) No.6469/2013 is being preferred by another 81 numbers of petitioners, WP(C) No.312/2014 is being preferred by the General Secretary, Assam Madhyamik Sikshak Aru Karmachari Santha and others, WP(C) No. 5144/2013 is being preferred by the President of the Mangaldoi Madhyamik Sikshak Aru Karmachari Santha and others and WP(C) No.6458/2013 is being preferred by 41 numbers of petitioners. 3. For the sake of brevity, the sequence of facts in WP(C) No.312/2014, which has been filed by the Assam Madhyamik Sikshak Aru Karmachari Santha is being referred. It is the case of the petitioners that the Demonstrators in the Higher Secondary Schools, as per the revision pay scale under the Assam Services (Revision of Pay) Rules, 2010 are in the pay band and grade pay of Rs. 8000/- to Rs. 35,000/-, whereas the Graduate Teachers of the High Schools are in the pay band and grade pay of Rs. 5200/- to Rs. 20200/. It is the case of the petitioners that the two different cadres/posts, i.e. the Demonstrators in the Higher Secondary Schools and the Graduate Teachers of the High Schools are categorized in the same grade as per the relevant service rules, but the scale of pay is different. It is contended that this is discriminatory as the Graduate Teachers and Demonstrators are of equal in rank as both are engaged to teach the students. While the Graduate Teachers are doing laborious job by attending five to six classes in a day imparting education in various subjects, the Demonstrators are usually required to assist the students in the practical classes, which comprises of four to five classes in a week. It is the further case of the petitioners that both the groups are equal in rank and has been categorized as the same cadre in Class-II Jr, so there is no reason as to why one group is being given a lesser pay scale than the other group. It is the further case of the petitioners that both the groups are equal in rank and has been categorized as the same cadre in Class-II Jr, so there is no reason as to why one group is being given a lesser pay scale than the other group. It is contended that such factual situation of one group being paid a lesser pay scale than the other group is discriminatory and violative of the Article 14 of the Constitution of India. It is the further case of the petitioners that for the post of Graduate Teachers in a High School, the minimum qualification prescribed is a Graduate Degree in Arts, Science and Commerce, whereas, for the Demonstrators also the prescribed qualification is Graduate Degree in Science. It is the further case of the petitioners that although the two posts are categorized in the same grade, but they are provided with a different scale of pay by the Assam Services (Revision of Pay Rules) 2010 and this difference in the pay scale is discriminatory as the Graduate Teachers and the Demonstrators are equal in rank and both are engaged to teach students. It is the further case of the petitioners that the duty of the Graduate Teacher is to impart education in various subjects like English, Assamese, Social Science, General Science, Environmental Science, Mathematics etc for 4/5 periods in a given working day, whereas the Demonstrators are required only to impart education in practical teaching of science subjects. It is the submission that the volume of work of Graduate Teachers is much more than that of Demonstrator and therefore, the difference in scale of pay has degraded the status and prestige of the Graduate Teachers of the State and in the academic side they are treated to be junior than that of the Demonstrators. It is also the case of the petitioners that it has not been clearly explained in the ROP Rules of 2010 as to how the given pay band for the Graduate Teachers was fixed. 4. Per-contra, Mr. J. Abedin, learned Standing Counsel for the Education Department submits that there is a difference in the qualification for appointment of the Graduate Teachers in the High Schools and that of the Demonstrators in the Higher Secondary Schools. 4. Per-contra, Mr. J. Abedin, learned Standing Counsel for the Education Department submits that there is a difference in the qualification for appointment of the Graduate Teachers in the High Schools and that of the Demonstrators in the Higher Secondary Schools. By referring to the Schedule-II of the Assam Secondary Education (Provindialisation) Service Rules, 2003, (hereinafter referred to as the 2003 rules), particularly Clause-ix, submits that the required educational qualification for the post of Demonstrators in the Higher Secondary Schools is B.Sc with major/honours in the respective subject with 50% marks having B.T/B.ed degree from any recognised university. Again by referring to Clause-ii of the said Schedule-II, Mr. Abedin, submits that the required qualification for the post of Graduate Teacher in the High School is B.A/B.Sc/B.Com with 50% marks with B.T/B.Ed degree from any recognised university. Accordingly, Mr. Abedin, submits that for the post of Demonstrator in the Higher Secondary School, the required qualification is higher inasmuch as, the incumbents are required to have the B.Sc degree with major/honours in the respective subject, whereas for the post of Graduate Teachers in High School, the requirement of major/honours is absent. Hence, according to Mr. Abedin, learned Standing Counsel for Education Department, the required qualification for the post of Demonstrator in the Higher Secondary Schools is higher than that of the post of Graduate Teacher in a High School. It is submitted that in view of such difference in the required qualifications, the difference of pay scale meted out to the Demonstrators and the Graduate Teachers are justified in law. Mr. Abedin, learned counsel further submits that the difference in pay scale between the Demonstrators in the Higher Secondary Schools and the Graduate Teachers in the High Schools has been existing since long and the said difference in the scale of pay had never been agitated upon by the Graduate Teachers. 5. Be that as it may, the core submission of the petitioners is that by the application of the doctrine of equal pay for equal work, the Graduate Teachers of a High School are entitled to a same pay scale as that of the Demonstrators in a Higher Secondary School. 6. 5. Be that as it may, the core submission of the petitioners is that by the application of the doctrine of equal pay for equal work, the Graduate Teachers of a High School are entitled to a same pay scale as that of the Demonstrators in a Higher Secondary School. 6. Upon consideration of the aforesaid contentions raised by the petitioners claiming an equal pay scale with that of the Demonstrators on the basis of the principle of equal pay for equal work, the relevant considerations before this Court is as to whether the nature, character and volume of the work done by the Graduate Teachers on an inter-se comparisons with that of the Demonstrators, is equal or more, or less. 7. The Laws relating to the application of the doctrine of equal pay for equal work have been discussed and laid down by the Hon'ble Apex Court in a catena of decisions over a period of time. In Kishori Mohanlal Bakshi v. Union of India, reported in AIR 1962 SC 1139 , in paragraph-2, the Hon'ble Apex Court has held that there is no denial here of equality of opportunity as among citizens holding posts of the same grade. In the said case, there was a contention raised that there were discrimination between the Class-I and Class-II officers inasmuch as, they did the same kind of work though their pay scales were different. The Hon'ble Apex Court while rejecting the argument, inter-alia, observes that:- "If this contention had any validity, there could be no incremental scales of pay fixed dependent on the duration of an officer's service. The abstract doctrine of equal pay for equal work has nothing to do with Article 14. The contention that Article 14 of the Constitution has been violated therefore also fails." 8. In a later decision in Randhir Singh v. Union of India and others, reported in (1982) 1 SCC 618 , the Hon'ble Apex Court was of the view that the principle of "equal pay for equal work", is not an abstract doctrine, but one of substance. Explaining the case of Kishori Mohanlal Bakshi (Supra), it was provided that "Kishori Mohanlal Bakshi v. Union of India is not itself of any real assistance to us since what was decided there was that there could be different scales of pay for different grades of a service. Explaining the case of Kishori Mohanlal Bakshi (Supra), it was provided that "Kishori Mohanlal Bakshi v. Union of India is not itself of any real assistance to us since what was decided there was that there could be different scales of pay for different grades of a service. It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The Higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of 'equal pay for equal work' would be an abstract doctrine not attracting Article 14 is sought to be applied to them." 9. In State Bank of India and another v. M.R. Ganesh Babu and others, reported in (2002) 4 SCC 556 , the Hon'ble Apex Court inter-alia, held that the principle of equal pay for equal work had been considered and applied and adequately explained and crystallized and sufficiently reiterated in a catena of decisions. It has been held that it is well settled that equal pay must depend upon the nature of the work done and it cannot be judged by the mere volume of work, as there may be qualitative difference as regards reliability and responsibility. It has also been held that the differences between the two works is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona-fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It has also been held by the Hon'ble Apex Court that the principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons even within the same organization. Paragraph-16 of the said judgment of the Hon'ble Apex Court is quoted herein below:- "16. The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. Paragraph-16 of the said judgment of the Hon'ble Apex Court is quoted herein below:- "16. The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystallized and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who ar charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organisations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court." 10. From the aforesaid judgment of the Hon'ble Apex Court, what is discernible is that the nature, character and volume of the work done by the two groups of employees, who claim parity of pay on the basis of the principle of equal pay for equal work, has to be evaluated. What is required is that the evaluation of such inter-se comparison based upon a value judgment has to be made bona-fide and reasonably on an intelligible criterion, which has a rational nexus of the objective of differentiation. What is required is that the evaluation of such inter-se comparison based upon a value judgment has to be made bona-fide and reasonably on an intelligible criterion, which has a rational nexus of the objective of differentiation. It is discernible from the said judgment of the Hon'ble Apex Court that until and unless such an exercise has been carried out evaluating the degree and the basis of the differences in the nature, character and volume of the work as well as the responsibility, reliability and confidentiality of the two posts, any such differentiation in the pay scales offered to the two groups of employees, would be arbitrary and unreasonable. 11. In the instant case, it is the case of the petitioners that by qualification, both the Graduate Teachers in the High Schools as well as the Demonstrators in the Higher Secondary Schools are required to be graduates. Whereas, on the other hand, it is the case of the respondents that the Demonstrators in the Higher Secondary Schools are required to have a higher qualification inasmuch as, they are required to have major/honours in their respective subject in their graduation. The mere difference that the Demonstrators in the Higher Secondary Schools are required to have major/honours and whereas the Graduate Teachers in the High Schools are not required to have a major or honours, may not itself be sufficient to construe that the nature, character and volume of the work performed by the Graduate Teachers in the High Schools and the Demonstrators in the Higher Secondary Schools are different. It has also been the contention of the petitioners that while on one hand the Graduate Teachers in the High Schools are required to teach students up to 4/5 classes per day, on the other hand, the Demonstrators in the Higher Secondary Schools are only required to attend to the students only 4/5 classes per week. Such differences in the nature of duty also throw some light on the volume of work of the two groups of Graduate Teachers and the Demonstrators required to perform. Such differences in the nature of duty also throw some light on the volume of work of the two groups of Graduate Teachers and the Demonstrators required to perform. In such view of the matter, the mere differences that the Demonstrators in the Higher Secondary Schools are required to have a major/honours in their respective subject in their graduation, be itself may not be sufficient to hold that the Demonstrators in the Higher Secondary Schools are of a higher class than that of the Graduate Teachers in the High Schools. 12. A proper evaluation of the nature, character and volume of the work, as well as the qualitative difference as regards reliability and responsibility and the kind of work performed, would require a more through and elaborate assessment of the difference in the duties performed by the Graduate Teachers in High Schools and the Demonstrators in the Higher Secondary Schools. 13. In this regard, reference may be made to the decision of the Hon'ble Apex Court in State of Punjab and another v. Surjit Singh and others, reported in (2009) 9 SCC 514 , wherein the Hon'ble Apex Court had the occasion to rely upon the judgment in Randhir Singh (Supra). In the said decision, the Hon'ble Apex Court also relied upon the decision of The Union of India v. Dineshan K.K, wherein upon examination of several decisions in State of Haryana v. Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology v. Manoj K Mohanty and Govt of W.B v. Tarun K. Roy, the Apex Court was of the view that "the doctrine of equal pay for equal work is not an abstract doctrine capable of being enforced in a Court of law. It was, inter-alia, held that equal pay must be for equal work of equal value and the principle of equal pay for equal work has no mathematical application in every case and it has been held that Article 14 permits reasonable classification based on qualities or characteristics of the persons recruited and grouped together." It has been held that; "since the principle of equal pay for equal work requires considerable consideration of various dimensions of a given job, normally the applicability of this principle must be left to be evaluated and determined by an expert body and the Court should not interfere till it is satisfied that the necessary materials on the basis of which the claim is made is available on record with necessary proof." 14. Accordingly, the Hon'ble Apex Court in the case of Surjit Singh (Supra), in paragraph-38, provided that the interest of justice would be subserved if the State is directed to examine the cases of the respondents by appointing an expert committee as to whether the principles of law has been satisfied or not. Paragraph-38 of Surjit Singh (Supra) is as follows:- "38. We, therefore, are of the opinion that the interest of justice would be sub-served if the State is directed to examine the cases of the respondents herein by appointing an expert committee as to whether the principles of law laid down herein viz. as to whether the respondents satisfy the factors for invocation of the decision in Charanjit Singh in its entirety including the question of appointment in terms of the recruitment rules have been followed." 15. In view of the aforesaid decisions of the Hon'ble Apex Court laying down the law relating to the invocation of the doctrine of the equal pay for equal work, I am of the considered view that in the instant case, there is no sufficient material on record to formulate a value judgment as to whether there is a qualitative difference as regards reliability and responsibility between the works performed by the Graduate Teachers in the High Schools and the Demonstrators in the Higher Secondary Schools. In the absence of such relevant materials on record, it would be inappropriate for this Court to give a decision on the value judgment on such difference between the two groups of employees involved in this case. In the absence of such relevant materials on record, it would be inappropriate for this Court to give a decision on the value judgment on such difference between the two groups of employees involved in this case. On the other hand, by relying upon the decisions of the Hon'ble Apex Court that normally the applicability of the principle of equal pay for equal work must be left to be evaluated and determined by an Expert Body, and also in view of the direction of the Apex Court in the case of Surjit Singh (Supra) that the State be directed to examine the cases by appointing an Expert Committee, I am also of the considered view that in the instant case also the ends of justice would be meted if a direction is issued to the State respondents to constitute an Expert Committee to examine the case and make a value judgment on the qualitative difference in the reliability and the responsibility between the Graduate Teachers in the High Schools and the Demonstrators in the Higher Secondary Schools. 16. It is provided that the Expert Committee to be so constituted, would comprise of apart from the Commissioner and Secretary to the Government of Assam in the Education Department, an academician preferably from the Gauhati University, who can make an objective assessment and make a value judgment on the qualitative difference in the reliability and responsibility between the Graduate Teachers of the High Schools and the Demonstrators in the Higher Secondary Schools. It is provided that the Committee may also constitute a responsible officer of a high level from the State Council of Education Research and Training (SCERT), who would also be inducted as a member of the Expert Committee. 17. Accordingly, it is directed that the respondent authorities would constitute an Expert Committee within a period of 15 days from the date of receipt of a copy of this judgment by comprising of persons as indicated above and the case of the Graduate Teachers of the High Schools for its claim for equal pay for equal work, in comparison with the Demonstrators of the Higher Secondary Schools be examined by the said committee. The opinion of the Expert Committee, constituting the valued judgment on the difference in the reliability and the responsibility in the work of the Graduate Teachers of the High Schools and the Demonstrators of the Higher Secondary Schools would be given within a period of 04(four) months from the date of the constitution of the Expert Committee. While arriving at a decision, the Expert Committee would also consider the rival submission that the volume of work performed by the Graduate Teachers in the High Schools is much more than that of the Demonstrators in the Higher Secondary Schools, while there being no much qualitative difference in the nature of their work, and also the contention of the State Government that due to the requirement of major/honours in the graduation, the Demonstrators are of a higher qualification. 18. The writ petitions are disposed of in the above terms.